incorporation

One of the running battles concerning the 2nd Amendment is whether or not it is an individual right or a collective right – i.e. one for the state to limit/restrict. I think a fair reading of the amendment and the history of the era and those who penned the Bill of Rights clearly puts it (as with most of the other amendments dealing with our freedoms) in the “individual rights” category.

The Washington State Supreme Court weighed in on the question and while I recognize the fact that this is only valid in that state, it is a precedent that moves the argument a little further along – and not in a way the collective rights crew is going to like.

The trial court found Sieyes guilty of unlawful possession of a firearm under RCW 9.41.040(2)(a)(iii),1 which limits circumstances in which children under age 18 can lawfully possess firearms. We must decide whether the Second Amendment to the United States Constitution applies to the states and, if so, determine whether RCW

“A person, whether an adult or juvenile, is guilty of the crime of unlawful possession of a firearm in the second degree, if the person does not qualify under subsection (1) of this section for the crime of unlawful possession of a firearm in the first degree and the person owns, has in his or her possession, or has in his or her control any firearm: . . . [i]f the person is under eighteen years of age, except as provided in RCW 9.41.042.” RCW 9.41.042 enumerates nine exceptions which allow children under age 18 to possess firearms.

What the police contend, of course, is these circumstances didn’t involve one of the 9 exceptions. Washington state had claimed it had the legislative right to restrict who may or may not possess a firearm.

The court disagreed:

41.040(2)(a)(iii) unconstitutionally infringes on the right to bear arms protected by either the United States or Washington Constitutions. We hold the Second Amendment applies to the states via the Fourteenth Amendment due process clause; however, Sieyes fails to demonstrate on this record that RCW 9.41.040(2)(a)(iii) infringes on his right to bear arms under either constitution.

The courts justification is quite interesting and I encourage you to read it. Essentially they cite the Heller case and note that the Supreme Court “unquestionably recognized an individual right to bear arms and, in the process, rejected a collective right conditioned militia service.” What the SCOTUS didn’t do is determine whether or not that amendment applies to the states via the 14th Amendment and “incorporation”.

Incorporation is “[t]he process of applying the provisions of the Bill of Rights to the states by interpreting the 14th Amendment’s Due Process Clause as encompassing those provisions.” Black’s Law Dictionary 834 (9th ed. 2009). The Fourteenth Amendment bars “any state [from] depriv[ing] any person of life, liberty, or property, without due process of law.” U.S. Const. amend. XIV, § 1. Under the original constitutional architecture the federal Bill of Rights protected only enumerated rights from federal interference.

The 14th Amendment changed that “original constitutional architecture” and establshed that those constitutional rights “incorporated” under the 14th applied to the states as well.

What the Washington State Supreme Court found is that it does as indicated by the highlighted line cited above and in their conclusion:

The Second Amendment right to bear arms applies to the states through the due process clause of the Fourteenth Amendment.

An interesting win for those who believe the right to be an individual right. 5 of the 6 justices on the Washington State Supreme Court concurred with the ruling. The dissenting justice essentially dissented because the court didn’t go far enough in its protection of the right. I would guess this will eventually wend its way toward SCOTUS which, as this ruling notes, explicitly avoided this question in Heller.